and agree on what was peripheral. He seemed to take seriously the idea that in some manner, the entire law should be reviewed if the individual mandate is struck as not being a proper exercise of the Commerce Clause.
JUSTICE BREYER: I mean, I think it's not uncommon that Congress passes an act, and then there are many titles, and some of the titles have nothing to do with the other titles. That's a common thing. And you're saying you've never found an instance where they are all struck out when they have nothing to do with each other.
My question is, because I hear Mr. Clement saying something not too different from what you say. He talks about things at the periphery. We can't reject or accept an argument on severability because it's a lot of work for us. That's beside the point. But do you think that it's possible for you and Mr. Clement, on exploring this, to get together and agree on -(Laughter)
JUSTICE BREYER: -- I mean, on a list of things that are, in both your opinions, peripheral. Then you would focus on those areas where one of you thinks it's peripheral and one of you thinks it's not peripheral. And at that point, it might turn out to be far fewer than we are currently imagining, at which point we could hold an argument or figure out some way or somebody hold an argument and try to -- try to get those done.
Is that a pipe dream or is that a -
What is interesting is how little apparent acceptance of the government's position (also cut guaranteed issue and community rating) there was among the justices. Granted they were arguing a hypothetical and that all this may be moot, it seemed as if Sotomayor and maybe even Ginsburg thought that the best thing was to sever the entire act, including guaranteed issue and community rating, and that Kennedy/Scalia were leaning towards striking the entire act.
There wasn't an apparent core of acceptance for Kneedler's argument. Breyer again:
JUSTICE BREYER: What he's thinking of is this: I think Justice Scalia is thinking, I suspect, of -- imagine a tax which says, this tax, amount Y, goes to purpose X, which will pay for half of purpose X. The other half will come from the exchanges somehow. That second half is unconstitutional. Purpose X can't possibly be carried out now with only half the money.
Does the government just sit there collecting half the money forever because nobody can ever challenge it? You see, there -- if it were inextricably connected, is it enough to say, well, we won't consider that because maybe somebody else could bring that case and then there is no one else?
I mean, is that -
Breyer at one point suggested sending severability back to the district court, but does that really help matters?
It really is a huge issue, because the way ACA is written, the individual mandate and minimum coverage provisions are economically inextricably linked, and the minimum coverage provisions without the individual mandate would almost certainly result in tens of millions of employees losing employer-provided coverage. We know that because of the waivers provided - entire industries, such as fast food, nursing homes, health care agencies, etc, cannot afford to provide the minimum package of insurance mandated in the law. So they will choose to pay the fine and throw the employees on the exchanges. The employees would still get the subsidies, but the subsidies will cost much more because the insurance will cost much more, and some of the employees will not choose the coverage (it's very expensive and doesn't cover much) and instead will pay out of pocket for what they can. This will mean that you greatly magnify the adverse selection problem, and you may indeed put insurance companies into a death spiral.
So it's a mess.
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